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Supreme Court Blocks Vaccine Mandate for Large Businesses; Health Care Worker Mandate Stands

January 13, 2022 by Dan McCue
Supreme Court Blocks Vaccine Mandate for Large Businesses; Health Care Worker Mandate Stands
The U.S. Supreme Court is seen Tuesday, June 30, 2020, in Washington. (AP Photo/Manuel Balce Ceneta)

WASHINGTON — The Supreme Court on Thursday blocked the Biden administration from enforcing a COVID-19 vaccine mandate on businesses that employ 100 or more workers, but in a separate ruling allowed a mandate on health care workers to proceed.

In a 6-3, 30-page ruling in the consolidated cases of National Federation of Independent Business v. Dept. of Labor, et al., and Ohio v. Dept. of Labor, et al., the justices noted that the Occupational Safety and Health Administration has never before imposed such a mandate on employers.

“Nor has Congress,” the justices said. “Indeed, although Congress has enacted significant legislation addressing the COVID-19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.

“Applicants now seek emergency relief from this court, arguing that OSHA’s mandate exceeds its statutory authority and is otherwise unlawful. Agreeing that applicants are likely to prevail, we grant their applications and stay the rule,” the justices said.

The three dissenting justices, Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote that, “As disease and death continue to mount, this court [is telling] the agency that it cannot respond in the most effective way possible.”

As for the court’s 5-4 ruling on the vaccine mandate on employees in the health care industry, and the consolidated cases of Joseph R. Biden Jr., et al., v. Missouri, et al., and Xavier Becerra, et al. v. Louisiana, the justices held the secretary of the Department of Health and Human Services has long administered the federal Medicare and Medicaid programs and in doing so has imposed regulations “as may be necessary to the efficient administration of the functions with which [he] is charged.” 

“One such function — perhaps the most basic, given the department’s core mission — is to ensure that the health care providers who care for Medicare and Medicaid patients protect their patients’ health and safety,” the justices said.

“Relying on these authorities, the secretary has established long lists of detailed conditions with which facilities must comply to be eligible to receive Medicare and Medicaid funds,” they continued.

After reviewing the arguments of both sides, the justices said they’ve concluded the rule applying to health care workers falls within the authorities that Congress has conferred upon the HHS secretary.

“Moreover, the secretary routinely imposes conditions of participation that relate to the qualifications and duties of health care workers themselves,” the justices continued. “We accordingly conclude that the secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.”

President Joe Biden responded to Thursday’s ruling by saying the court’s decision to uphold the requirement for health care workers “will save lives: the lives of patients who seek care in medical facilities, as well as the lives of doctors, nurses, and others who work there. It will cover 10.4 million health care workers at 76,000 medical facilities. We will enforce it.”

“At the same time, I am disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law,” the president said. “This emergency standard allowed employers to require vaccinations or to permit workers to refuse to be vaccinated, so long as they were tested once a week and wore a mask at work: a very modest burden.

“As a result of the Court’s decision, it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees, and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated,” Biden said.

“The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as president to advocate for employers to do the right thing to protect Americans’ health and economy. I call on business leaders to immediately join those who have already stepped up – including one third of Fortune 100 companies – and institute vaccination requirements to protect their workers, customers, and communities,” he added. 

On the OSHA Rule

The mandate blocked by the high court on Thursday required that workers at businesses with 100 or more employees must get vaccinated or submit a negative COVID-19 test weekly to enter the workplace. It also required unvaccinated workers to wear masks indoors at work.

The Occupational Safety and Health Administration, which polices workplace safety for the Labor Department, issued the mandates under its emergency power established by Congress.

The Biden administration argued before the high court Friday that OSHA can bypass normal rule-making procedures — like publication in the Federal Register and establishing a public comment period — if the labor secretary determines a new workplace safety standard is necessary to protect workers from a grave danger. 

The White House argued the coronavirus pandemic is just such a danger.

But the court’s conservative majority didn’t buy into this justification.

During oral arguments last week, Chief Justice John Roberts opined that he found it hard to believe the law that established OSHA gives “free reign to … agencies to enact such broad regulation.”

In fact, the majority embraced a very narrow view of OSHA’s role in American life.

“As its name suggests, OSHA is tasked with ensuring occupational safety — that is, ‘safe and healthful working conditions,’” they wrote. “It does so by enforcing occupational safety and health standards promulgated by the secretary. 

“Such standards must be ‘reasonably necessary or appropriate to provide safe or healthful employment.’ They must also be developed using a rigorous process that includes notice, comment and an opportunity for a public hearing,” the majority said.

They also noted that prior to the emergence of COVID-19, the labor secretary had used the agency’s emergency power just nine times before (and never to issue a rule as broad as this one). Of those nine emergency rules, six were challenged in court and only one of those was upheld in full,” the justices continued.

The majority also had other issues with the rule. For instance, they noted it drew no distinctions based on industry or risk of exposure to the virus. “Thus, most lifeguards and linemen face the same regulations as do medics and meatpackers,” they said.

In addition, though there were some narrow exemptions to the rule, the majority of justices found them “largely illusory.” 

“Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no everyday exercise of federal power,” the majority continued. “It is instead a significant encroachment into the lives — and health — of a vast number of employees.” 

Justice Gorsuch filed a concurring opinion, which Justices Clarence Thomas and Samuel Alito joined.

But the liberal justices on the court were clearly sympathetic to the Biden administration’s position. In their dissent, they speak at length about the pandemic’s devastating death toll and the ongoing surge of infections due to the omicron variant.

“In our view, the court’s order seriously misapplies the applicable legal standards. … And in so doing, it stymies the federal government’s ability to counter the unparalleled threat that COVID–19 poses to our nation’s workers,” the dissenters wrote. “Acting outside of its competence and without legal basis, the court displaces the judgments of the government officials given the responsibility to respond to workplace health emergencies.”

They note the majority does not contest that COVID–19 is a ‘new hazard’ and a ‘physically harmful agent,’ that it poses a ‘grave danger’ to employees, or that a testing and masking or vaccination policy is ‘necessary’ to prevent those harms. 

“Instead, the majority claims that the act does not ‘plainly authorize’ the standard because it gives OSHA the power to ‘set workplace safety standards’ and COVID–19 exists both inside and outside the workplace,” they continued. “In other words, the court argues that OSHA cannot keep workplaces safe from COVID–19 because the agency (as it readily acknowledges) has no power to address the disease outside the work setting.

“But nothing in the act’s text supports the majority’s limitation on OSHA’s regulatory authority. Of course, the majority is correct that OSHA is not a roving public health regulator. It has power only to protect employees from workplace hazards. But as just explained, that is exactly what the standard does.”

The Mandate for Health Care Workers

In November, HHS Secretary Xavier Becerra issued an interim final rule amending the existing conditions to receive Medicare and Medicaid funding, instructing that participating facilities must ensure that their staff — unless exempt for medical or religious reasons — are vaccinated against COVID-19.

The rule does not cover staff who telework full-time.

And a facility’s failure to comply may lead to monetary penalties, denial of payment for new admissions and ultimately termination of participation in the programs.

Two federal courts enjoined enforcement of the rule, and the Biden administration asked the Supreme Court to intervene and stay those injunctions.

On review, the justices in the majority noted Becerra issued the rule after he concluded the vaccination of health care workers against COVID-19 was “necessary for the health and safety of individuals to whom care and services are furnished.” 

In many facilities, the justices said, 35% or more of staff remain unvaccinated, and those staff, Becerra explained, pose a serious threat to the health and safety of patients. 

“That determination was based on data showing that the COVID-19 virus can spread rapidly among health care workers and from them to patients, and that such spread is more likely when health care workers are unvaccinated,” the majority wrote. 

Becerra also explained that, because Medicare and Medicaid patients are often elderly, disabled or otherwise in poor health, transmission of COVID-19 to such patients is particularly dangerous. 

In addition to all this, Becerra also found that “fear of exposure” to the virus “from unvaccinated health care staff can lead patients to themselves forgo seeking medically necessary care,” creating a further “ris[k] to patient health and safety,” the justices wrote. 

The HHS secretary further noted in announcing the policy that staffing shortages caused by COVID-19-related exposures or illness have disrupted patient care.

“The secretary issued the rule as an interim final rule, rather than through the typical notice-and-comment procedures, after finding ‘good cause’ that it should be made effective immediately,” the justices wrote. “That good cause was, in short, the secretary’s belief that any ‘further delay’ would endanger patient health and safety given the spread of the delta variant and the upcoming winter season.”

They noted that when the respondents were asked during oral arguments whether an HHS secretary can, using the very same statutory authorities at issue in this case, require hospital employees to wear gloves, sterilize instruments, wash their hands in a certain way and at certain times, the respondents answered yes.

And they went on to say, “The secretary certainly has authority to implement all kinds of infection control measures at these facilities.”

Though the justices conceded the vaccine mandate goes further than what the secretary has done in the past to implement infection control, they also asserted the secretary has “never had to address an infection problem of this scale and scope before.” 

“In any event, there can be no doubt that addressing infection problems in Medicare and Medicaid facilities is what he does,” the justices wrote, noting that vaccination requirements are a common feature of the provision of health care in America: “Health care workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, measles, mumps and rubella,” they wrote. 

“All this is perhaps why health care workers and public health organizations overwhelmingly support the secretary’s rule,” the majority said. “Indeed, their support suggests that a vaccination requirement under these circumstances is a straightforward and predictable example of the ‘health and safety’ regulations that Congress has authorized the secretary to impose.

“We accordingly conclude that the secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID-19,” they concluded.

Justice Clarence Thomas wrote the dissent, on which he was joined by Justice Samuel Alito, Justice Neil Gorsuch and Justice Amy Coney Barrett.

“If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not,” they wrote. 

“These cases are not about the efficacy or importance of COVID-19 vaccines,” they continued. “They are only about whether CMS has the statutory authority to force health care workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo. Because the government has not made a strong showing that Congress gave CMS that broad authority.” 

Dan can be reached at [email protected] and at https://twitter.com/DanMcCue 

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